The Supreme Court recently granted certiorari in NY Rifle and Pistol Association v. Corlett, likely to be the first major Second Amendment case in a decade. The question presented is whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.
I'm far less expert in the Second Amendment than a lot of folks writing about the case, but for Chicago's public interest auction I agreed to write about a topic of the winner's choosing, and this is what he chose.
So here's how I think about the case.
I think Heller is plausibly correct to think that the Second Amendment protects a pre-existing individual right. I'm less sure whether Heller is correct about the *kinds* of arms that are protected by the right, or whether Robert Leider is correct that the Court should have focused more on militia-related arms like M16s and less on handguns. But even if one thinks the Second Amendment right is militia-related, more so than the majority acknowledged, the dissent's restricted interpretation doesn't seem plausible to me.
[And here I'll acknowledge that there are substantial historical critiques of Heller's methodology, especially by Saul Cornell; and that there is a growing corpus-linguistics critique as well, about which I'll have more to say later this summer. But these points aren't centrally relevant to this post.]
McDonald v. City of Chicago is also plausibly correct. There is a question about whether the Court was right to incorporate some of the Bill of Rights against the states, and I'm in the middle of working through a seminar on the original meaning of the Privileges or Immunities Clause, and still coming to my own conclusions. But if some kind of incorporation doctrine is correct, McDonald is likely correct, and it's at least plausible that some kind of incorporation doctrine is correct.
That said, even with those two premises established, the case gets tricky.
As a matter of historical practice, states had bans on concealed carry during the nineteenth century. These bans are relevant both for potential liquidation of the meaning of the Second Amendment, and more to the point, for the original meaning of the Fourteenth Amendment, which is the Amendment at issue in Corlett. Robert Leider has great work on this too.
That said, it's a harder question whether states can have those bans in a regime that also has no right to open carry. Maybe the right should still be all about the right to open carry, because maybe that was understood to be the core of the Second Amendment right. (After all, if one thinks the right is somewhat militia related, members of the militia bore arms openly, and bore arms that were hard to conceal.)
Or maybe we would give states more flexibility, saying that they can choose whether to allow open carry or concealed carry. But it does seem implausible that the state can effectively stop citizens from bearing arms outside the home.
With these questions in view, it's not clear to me that Cortlett is the best vehicle for considering these questions, compared to the recent Ninth Circuit decision from Hawaii. First, I've been told that there are some ambiguities in whether New York allows or forbids those with a carry license from carrying their firearms openly. Second and relatedly, the law of restricted gun licenses in New York is quite baroque, but it might be necessary for the Court to figure it out if the right to concealed carry depends in part on the availability of the right to open-carry. Third, New York authorities issue many carry licenses to civilians, so the regime for concealed-carry licenses is not as close to a complete or near-complete ban as Hawaii. Fourth, in New York, no state law prohibits individuals from carrying rifles and shotguns (although some cities, including New York City, restrict the practice), where Hawaii restricts both.
Now the petitioner’s lawyers are very very good, and it may well be that the Court has thought its way through these issues and they won't be a problem. For instance, in principle the Court could just announce the test it thinks is relevant and remand for application of that test to the details of New York law. But it's also possible that they will realize as they dig in to the case over the summer that it would have been wiser to grant the Hawaii case. Indeed, it's not too late. When they get a cert petition from Hawaii over the summer, they might consider granting it and consolidating it with New York so that they have the option of resolving the issue in a simpler but accurate way.